Section VI

Each station is required to maintain in the “political file” folder of its online public inspection file certain records concerning all requests for political broadcast time made (1) by or on behalf of candidates, or (2) by third parties seeking to purchase time to communicate a message relating to any matter(s) of national importance (discussed below).

Triggered by “Request” for Time
The FCC has acknowledged that it is not always readily apparent when a “request” for time sufficient to trigger the record-keeping obligations has been made. Accordingly, the FCC has clarified that a “request” occurs when a political advertiser places a final order for a specific schedule of ads that the station could act upon if it were to accept the order; i.e., a final order to purchase particular schedules, amounts of time, and classes of time. Put differently, stations are not required to place in their online public inspection files general requests for advertising time that stations have available to purchase, or rates for a general array of time; such a broad inquiry does not constitute a request that triggers the political file record-keeping obligations. We recommend contacting your legal counsel should a circumstance arise in which you are uncertain whether the recordkeeping obligations have been triggered.

The Importance of Timely Uploads
The specific rules regarding recordkeeping differ slightly depending on the nature of the purchaser of the advertisement and the subject of the advertisement. FCC staff has reminded broadcasters of the importance of uploading all required information to the online public inspection file in a timely manner, most recently (in 2020 and 2021) through a slew of consent decrees addressing timeliness and completeness issues in the practices of large and small stations alike. As each record in a station’s online public inspection file contains a “date/time stamp,” the Commission can easily discern when the record was uploaded — and whether such upload was “timely.” Likewise, the Commission or “watchdog” organizations may be able to determine whether a station is lacking required information for political advertisers simply by reviewing the station’s online public inspection file.

Three Categories of Ads
The information that a station is required to place in its online political file falls into three general categories: (1) advertisements on behalf of candidates or their authorized committees; (2) issue advertisements that relate to a political matter (or matters, as the case may be) of national importance; and (3) issue advertisements that do not relate to political matter of national importance, but instead relate to controversial or political issues of state or local importance. Certain political records for each of the foregoing categories must be uploaded to the political file section of a station’s online public inspection file “immediately” (i.e., within one business day of receiving a qualifying request for time, absent unusual circumstances) and must remain there for two years.

A copy of the station’s political disclosure statement is not required to be placed in the political file section of the station’s online public inspection file. However, some stations nonetheless choose to upload their political disclosure statement in an effort to ensure that their online public inspection file contains all necessary information regarding each political advertising order (for example, a political disclosure statement may list the “codes” a station uses on a political advertising order sheet to indicate which class of time the political advertiser has purchased). Accordingly, stations may wish to consult with legal counsel regarding whether to put the political disclosure statement in the online public file; the information in the disclosure statement may need to be updated from time to time, and stations may wish to avoid a situation in which an outdated political disclosure statement with then-inaccurate information remains in the online public inspection file.

A. Advertisements by or On Behalf of a Candidate

The Communications Act of 1934, as amended by BCRA, requires broadcasters to maintain and make available for public inspection a complete record of any request to purchase broadcast time that is made by or on behalf of a legally qualified candidate for public office. This includes both federal and non-federal candidates.

BCRA Requirements for Candidate Ads
The records required by BCRA for candidate commercials must contain information regarding:

(1) whether the request to purchase broadcast time is accepted or rejected by the station;
(2) the rate charged for the broadcast time;
(3) the date and time on which the advertisement is aired;
(4) the length and class of time that is purchased;
(5) the name of the candidate to which the advertisement refers and the office to which the candidate is seeking election; and
(6) the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee.

B. Third-Party Advertisements Relating to a Federal Candidate, Federal Election, or National Legislative Issue of Public Importance

BCRA extends similar requirements to those listed in Section VI.A to any advertisement that communicates a message relating to any political matter(s) of national importance, including (i) legally qualified federal candidate(s), (ii) federal election(s), and/or (iii) national legislative issue(s) of public importance. This includes any advertising by third parties — including corporations, trade associations, or unions that supports or opposes a federal candidate, addresses issues or other candidates in a federal election, addresses national legislation, or, as the FCC has clarified, references an issue that is controversial or generating discussion at a national level (for example, the topic of “gun control” could qualify as a “political matter of national importance” even if there is no currently pending federal legislation addressing the issue).

BCRA Requirements for Issue Ads
The records required by BCRA for third- party advertisements relating to a federal candidate, federal election, and/or national legislative issue of public importance must contain information regarding:

(1) whether the request to purchase broadcast time is accepted or rejected by the station;

(2) the rate charged for the broadcast time;

(3) the date and time on which the advertisement is aired;

(4) the length and class of time that is purchased;

(5) the federal candidate to which the advertisement refers, the federal election to which the advertisement refers, and/or the national legislative issue of public importance to which the advertisement refers (as applicable); to clarify, for each request to purchase broadcast time that triggers BCRA’s record-keeping requirements, stations must include in their political files the names of all candidates (and the offices to which they are seeking election), all elections, and all national legislative issues of public importance to which the ad refers; and

(6) the name of the person or entity purchasing the time (and, as clarified by the FCC, the name of any entity should not be an ambiguous acronym — using an entity’s full name is therefore advisable); the name, address, and phone number of a contact person for such purchaser; and a list of the chief executive officers or members of the executive committee or of the board of directors of such purchaser.

Obligation to Inquire — Once
The law is clear that a complete list of officers or members or directors is required — one name does not meet this requirement if there are multiple officers, members, or directors. The FCC has clarified that where a purchaser of political advertising time has provided incomplete information (e.g., the name of only one officer or director), stations may discharge their legal obligation by (1) making a single inquiry to the entity sponsoring the ad or the third-party buyer of advertising time acting on the entity’s behalf regarding whether there are other officers or directors of the sponsoring entity that must be identified under the law, or (2) informing the entity or third-party buyer as to which officers or directors must be identified under the law and asking the entity to provide that information. It would be advisable for stations to document any such follow-up inquiry in writing and to retain that documentation.

Reasonable, Good Faith Decisions
The FCC has clarified that it will use a standard of “reasonableness and good faith decision-making” when reviewing broadcasters’ efforts to:

(a) determine whether, in context, a particular issue ad triggers disclosure obligations;
(b) identify and disclose in their online political files all political matters of national importance that are referenced in each issue ad; and
(c) determine when it is appropriate to use acronyms or other abbreviations in their online political files when disclosing information about issue ads.

Although, technically, there may be some “federal” issue ads that do not address a federal candidate, election, and/or piece of legislation, such advertisements are likely to be few and far between, and it would be prudent for stations to follow BCRA’s record- keeping obligations for all federal issue advertisements.

May Need to Separate Records for Spots in the Same Order
Additionally, stations should be aware that they may be required to “break out” ads and separately identify them even if they are part of the same schedule. For instance, if a station were to receive an order placed by an issue advertiser that spans a two-week period, and the issue advertiser ultimately ended up airing two separate, 30-second spots pursuant to that single order — e.g., the copy of one advertisement references healthcare and the general presidential election and the copy of the other advertisement references immigration and the general presidential election — the station would need to separately identify those two advertisements and upload that supplementary information identifying the relevant issues in each of the two spots to the online public inspection file immediately (i.e., within 24 hours, absent unusual circumstances) upon learning that the advertisements address different national legislative issues of public importance.

C. Third-Party Advertisements Relating to State or Local Candidates, Elections, or Issues

The only political advertising not covered by BCRA’s record-keeping obligations consists of advertisements by third parties that refer to state or local candidates, elections, or a controversial issue of public importance other than national legislation.

For this category of advertising, the FCC’s rules nevertheless require stations to upload into the online public inspection file a list of the chief executive officers, or members of the executive committee, or members of the board of directors, of the entity that is paying for or furnishing the broadcast matter. While the FCC may, generally, defer to licensees’ good-faith decision-making in determining whether or not an advertisement targets truly state or local issues or, instead, national legislative issues of public importance, stations may wish to contact legal counsel when making such determinations.

D. Notation of “Equal Opportunities” Appearance in Public Inspection File

As mentioned above, for purposes of the “equal opportunities” requirement, a station is not required to proactively notify a candidate when time has been sold or given to other candidates. Instead, FCC rules require stations to ensure that records of free time (see Section II.E.2, Free “Uses”; How to Handle) and notations of all requests for time are immediately uploaded to the station’s online public political file, so that a candidate may have a chance to learn of a “use” by his or her opponent and make a timely request for an “equal opportunity.” A station’s failure to promptly place notification of a non-exempt use (see Section II.E.2) in the political folder of its online public inspection file may extend the seven-day period afforded a candidate claiming equal opportunity due to lack of proper notice. Accordingly, stations would be well served by uploading the notation of a use in its online public inspection file on the day the use occurs.

E. Telephone Requests for Information from Public File

Please note that the FCC no longer requires that stations accommodate telephone requests for information from the political file. A station may provide political file information by telephone if it wishes, but it is not required to do so unless the request is for information that should be in the file but is not yet there. Nonetheless, some stations elect to provide basic information about the amount of time purchased over the phone to promote sales. A station taking this approach must treat all advertisers in the same fashion.

F. Manner of Upload to Online Public Inspection File

Stations must upload political file documentation to their online public inspection file in an organized and reasonable manner in order to comply with the FCC’s political file rules. Accordingly, stations should adopt a practice of carefully placing materials in the correct location of their online political files. Generally, stations’ public files should already contain FCC-generated folders for each election year and, under each year, further subfolders split into the following categories: (1) for candidate advertisements, there are folders labeled “Federal”; “Local”; and “State,” depending on the office to which the candidate is seeking election, and (2) for third-party issue advertisements addressing one or more issue(s) of national legislative importance, there is a folder labeled “Non-Candidate Issue Ads.” (Third party advertisements addressing controversial local or state issues that are not of national legislative importance should be placed in the “Political Matters and Controversial Issues Disclosures” folder, which is a separate folder than the “Political Files” folder.) Stations should select the correct FCC-generated folder for each advertisement, and then stations should create relevant subfolders as necessary to further group political advertising information in an organized and logical fashion. For instance, all political files relating to President Biden’s 2020 general election campaign could have been placed into a folder labeled “Biden” by using the following folders: 2020→Federal→President→Biden.

Similarly, all political files relating to any advertisements placed during 2021 by a third-party issue advertiser named, for example, “America Next” could be placed in a folder labeled “America Next” by using the following folders: 2021→Non-Candidate Issue Ads→America Next.